11.21.08(b): The Role of Litigation in forming Public Health Policy: Tobacco
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The Role of Litigation in forming Public Health Policy: Tobacco M1 – Cardiovascular/Respiratory Sequence Peter D. Jacobson, JD, MPHFall 2008
PRESENTATION OUTLINE• Policy context• Role of litigation• Tobacco control policy and litigation• Applicability to other public health issues• Conclusion
POLICY CONTEXTThe issues• Role of litigation – Relative to political process in forming public health policy – Relative to other available public health remedies• Unprecedented scope and objectives of current tobacco and gun control litigation
POLICY CONTEXT (cont.)Policy context• Regulatory failure• Role of local health agencies relative to state agencies – Tobacco litigation mostly initiated at state level – Gun control litigation mostly initiated at local level• Litigation as political issue and as shaping public health policy
THE LITIGATION ENVIRONMENTFunctions of litigation• Compensation• Deterrence• Accountability• Equity• Corrective functions vs. promoting social goals
TOBACCO LITIGATIONThree Waves• First two waves based on negligence and strict liability – No damages paid – Individual responsibility defense
TOBACCO LITIGATION (cont.)• Third wave more expansive – State Attorneys General Medicaid litigation – Public health policy goals more explicit 4 volved from damages to public health E 4 tate settlements somewhat erode public S health focus
FRAMEWORK FOR ANALYSISRosenberg model• Dynamic view• Constrained viewComparative institutional analysis• Political processes• The market• The courtsRule-shifting vs. culture-shifting effects
Tobacco Control PoliciesEconomic• Excise Taxes• Damage awards from litigationRegulatory/Legislative• Youth access restrictions• Restrictions on smoking• Advertising restrictions• Marketing curbs (i.e., on logos and sporting event scholarship)• Enforcement activities
Tobacco Control Policies (cont.)Information/Education• Education about the harms from tobacco products• Disclosure of tobacco industry documents• Settlement negotiations with the tobacco industry• Shifting the public health debate• Smoking cessation programs• Research in tobacco control policy or in tobacco-related diseases• Counter advertising (i.e., anti-smoking ads)
Role of Litigation in Changing Tobacco PolicyExclusive domain• Damage awardsDirect effects• Corrective measures shared with legislatures
Role of Litigation in Changing Tobacco Policy (cont.)Indirect effects• Disclosure of incriminating documents• Educational function• Stimulate other policymakers to act• Influence changes in industry behavior
ROLE OF POLITICAL INSTITUTIONS IN CHANGING TOBACCO POLICYDirect Indirect• Every policy • Stimulate instrumentality negotiations with the except damages industry
ARGUMENTS FAVORING JUDICIAL POLICYMAKINGPragmatic• Legislative/regulatory failure• Damage awards forcing large price increases• Motivating public support through disclosing documents• Forcing tobacco industry to negotiate
ARGUMENTS FAVORING JUDICIAL POLICYMAKING (cont.)Philosophical• Courts are inherently policymakers• Blurring of the lines between the political and judicial processes
OBJECTIONS TO JUDICIAL POLICYMAKINGPhilosophical• Separation of powers• Legitimacy of courts as policymakers• Procedural constraints limit ability of judges to evaluate policy alternatives
OBJECTIONS TO JUDICIAL POLICYMAKING (cont.)Pragmatic• Novel legal theories being tested• Courts might not get it “right”• Diverts resources from other policy efforts• Reliance on litigation as a solution
ROLE OF THE COURTS IN PUBLIC HEALTH POLICYInstitutional choice• Preconditions to litigation – Building the moral and political case – Not necessarily present in other public health battles• Litigation as second-best solution – Distinct role in more comprehensive strategy – Concern about over-reliance on litigation
ROLE OF THE COURTS IN PUBLIC HEALTH POLICY (cont.)Individual choice and responsibility• Balance between industry culpability and individual freedom• Tobacco as extreme case• Applicability to other public health issues
Applicability to Other Public Health Issues• Obesity• Gun control• Gambling addiction• Differences?• Similarities?
CONCLUSION• Complex interactions between political theory and pragmatic policymaking realities.• Blurring of the line between litigation and politics of public health – Opponents must confront legislative/ regulatory failure – Proponents must recognize possibility that litigation will not change policy.
QUESTIONS FOR DISCUSSION(1) Which issues are amendable to litigation? Tobacco? Alcohol? Guns? Obesity?(2) What is achievable through litigation thatcannot be obtained from other public healthapproaches?(3) From your perspective, what are the costs andbenefits from pursuing litigation as a policystrategy?